Lorenzo Acconciamessa (University of Palermo; Member of the Editorial Board)

On 30 January 2025, the European Court of Human Rights (ECtHR or “the Court”) issued its judgment in the case of Cannavacciuolo and Others v. Italy, concerning the well-known large-scale pollution phenomenon stemming from illegal dumping, burying and/or uncontrolled abandonment of hazardous, special and urban waste, often associated with its incineration. The affected area, the Terra dei fuochi (“Land of Fires”), as currently delimited by the relevant domestic legislation, concerns 2,900,000 individuals, 52% of the population of the Campania region.

In what has been (rightly) defined a landmark judgment (Sommardal), the Court meticulously assessed all the available reports prepared by the domestic authorities that dealt with the issue, and some international reports, and concluded that the Government had not established that the authorities approached the problem with the diligence warranted by its seriousness and failed to demonstrate that the State did all that could have been required to protect the applicants’ lives, in breach of Article 2 of the European Convention on Human Rights (ECHR or “the Convention”; para. 465). It also considered that the breach derived from a «systemic failure» of the domestic authorities and the domestic legal system in dealing with the issue and that the situation affected and is capable of affecting a large number of people (para. 490); accordingly, it applied, for the first time in an environmental case, the pilot-judgment procedure, and indicated under Article 46 detailed general measures, which the State has been required to implement within a 2-year time-limit, under supervision of the Committee of Ministers (para. 493-500).

Since it would be impossible to deal with all the complex and interesting issues assessed in the 200-page judgment, in this post I will only focus on the question of the determination of victim status under Article 34 of the Convention in respect of complaints raised under Article 2 concerning life-threatening environmental harm, exclusively as regards the individual applicants (as regards the question whether the Court should have also applied the principles regarding victim status of NGOs for climate-change-related complaints, developed in Verein Klimaseniorinnen Schweiz v. Switzerland ([GC], 2024, paras. 489-503), in order to accord standing to several associations that had also acted before it, I refer to the detailed reasons provided in the opinions of Judges Krenc and Seghides, who argued that the Court should have taken this road, and which I fully endorse; see also Tigroudja on the same issue; more generally, on NGO’s standing before the Court, see Rossi).

So, the Government raised a two-fold victim status objection: on the one hand, they objected that there was no «proven causal link between the alleged breaches […] and the harm allegedly suffered» by all individual applicants; on the other hand, they observed that some applicants, or relatives who had deceased due to cancers that they claimed to derive from the exposure to the toxic substances generated by the phenomenon in question, had not resided in the geographical area described in the legislation as affected by that phenomenon. As it will be shown below, the Court ruled on the first question in an innovative and definitely pro-applicant way, while, in upholding the second objection, it adopted a formalistic and pro-Government approach, to the point that it seems that the judgment suffers of a Dr Jeckyll-Mr Hyde syndrome.

2. Dr Jekyll, The Question of Causation, and the (Ir)relevance of an Established “Harm” for the Purpose of Triggering Positive Obligations

Adopting the last one of the three possible methodological approaches that can be found in the case-law in similar cases (Verein Klimaseniorinnen Schweiz v. Switzerland, para. 458), the Court considered that the first limb of the victim status objection, and the issue of the applicability ratione materiae of Article 2 ECHR, were to be joined to the merits, notably to the question whether the authorities were under a positive obligation to protect the applicant’s lives. To answer, the Court recalled the principle – well-established in the case-law – according to which, for Article 2 to apply in the context of an activity which is, by its very nature, capable of putting an individual’s life at risk, there has to be a «real and imminent» risk to life. In this regard, it clarified that the term «real» risk corresponds to the requirement of the existence of a «serious, genuine and sufficiently ascertainable threat to life», while its «imminence» entails an element of physical proximity of the threat and its temporal proximity (para. 377). It also recalled that in establishing whether the authorities were under a positive obligation to take all appropriate steps to safeguard life, the Court has also considered whether the national authorities «knew or ought to have known» that the applicants had been exposed to a threat to life (para. 378).

In this case, the Court basically assessed (1) whether the activities entailed a potential harm to human life, and (2) whether the authorities knew about the existence of such risk.

As regards (1) the existence of a potential harm to life, the Court considered that there could be no doubt that the activities in question, which affected all environmental elements such as soil, water, and air, were inherently dangerous activities which could pose a risk to human life, and noted that its seriousness appeared undisputed (para. 385).

As regards (2) whether the authorities knew of such risk, the Court examined the available evidence, which led it to conclude that the national authorities knew about the existence of the dangerous activities from at least the early 1990s (para. 387), and knew that there were raising cancer rates.

In this context, the Court considered that, although the available studies had not disclosed a definite, direct correlation between exposure to the pollution generated by illegal waste disposals and the onset of certain diseases, they raised «credible prima facie concerns» about «serious, potentially life‑threatening health implications» (para. 388). In these circumstances, bearing in mind the «particular nature» of the phenomenon and its causes, the Court was satisfied that there was a real risk for the applicants’ lives and, noting that they had resided, over a considerable period of time, in municipalities identified as affected, considered that the risk was also imminent (para. 390).

This appears to be a real revolution in the Court’s case-law, if compared with the approach previously adopted in similar cases. The Government was right in observing that the previous environmental case-law required, for triggering the applicability of Article 2, evidence of a causal link between the exposure to a specific substance and the onset of a life-threatening disease which is scientifically proved to derive from the exposure to that substance (on the role of a «harm» for triggering positive obligations, see Stoyanova, pp. 58 ff.). For example, in Di Sarno and Others v. Italy (2012, para. 108), the Court noted that scientific studies had reached opposite conclusions as to the existence of a causal link between exposure to waste and an increased risk of developing pathologies, and held that it was unable to conclude that the applicants’ lives or health were threatened, and therefore concluded that Article 2 was not applicable. In Brincat and Others v. Malta (2014, paras. 83-85), all applicants had been exposed for a decade to asbestos. However, the Court found that Article 2 was applicable only in respect of the applicant who had been diagnosed a rare cancer scientifically associated with asbestos, and not those who had only respiratory pathologies and other complications related to asbestos, since in its view it could neither be said that their conditions constituted an inevitable precursor to that disease, nor that their current conditions were life-threatening. Even in Cordella and Others v. Italy (2019), where the Court established that there was scientific evidence that the exposure to the pollutants of the Ilva factory had affected the applicants’ health (para. 163) and raised mortality due to several pathologies (paras. 165-166) it did not examine the case under Article 2 (para. 94). Therefore, this case-law required that the exposure to the toxic substance had already caused a harm to health which was capable of leading to death.

In the light of this case-law, in Cannavacciuolo the Court should have assessed which applicants had been diagnosed with life-threatening diseases which scientifically derive from the pollutants to which they had been exposed, and should have declared Article 2 applicable only in their respect, and not in respect of those applicants who had developed less serious pathologies or no pathologies at all. By contrast, the Court held as follows:

«390. Being satisfied that the applicants were exposed to a risk thus described, the Court does not consider it necessary or appropriate to require that the applicants demonstrate a proven link between the exposure to an identifiable type of pollution or even harmful substance and the onset of a specific life-threatening illness or death as a result of it […].

391.  The Court further takes the view that, in line with a precautionary approach […], given that the general risk had been known for a long time […], the fact that there was no scientific certainty about the precise effects the pollution may have had on the health of a particular applicant cannot negate the existence of a protective duty, where one of the most important aspects of that duty is the need to investigate, identify and assess the nature and level of the risk […]. To find otherwise […] would entail that State authorities could rely on a failure to comply or delays in complying with a duty in order to deny its very existence, thereby rendering the protection of Article 2 ineffective».

This is the approach that, in previous cases, the Court had followed under Article 8. Already in 2009, Tatar v. Romania, it held, in the light of the precautionary principle, that the lack of scientific evidence concerning the existence of a causal link between the exposure to certain pollutants and the development of specific diseases could not exclude the existence of the State’s positive obligation to adopt measures to assess the nature of a sufficiently established risk and prevent it from materialising (para. 107). In the cited Di Sarno and Brincat cases, the Court observed that Article 8 allows complaints concerning the exposure to toxic substances to be examined even where the circumstances were not such as to engage Article 2, but clearly affected family and private life (para. 85). Recently, in KlimaSeniorinnen, it clarified that the reason why its Article 8 environmental case-law had not articulated the issue of causality in specific terms was due to the fact that this provision «is triggered not only by actual damage to the health or well-being of an applicant but by the risk of such effects» (para. 437). Therefore, it specified that for a State’s positive obligations to be engaged it is sufficient that there is «evidence of a risk meeting a certain threshold» and «a relationship of causation between the risk and the alleged failure to fulfil positive obligations» (para. 438). Therefore, under Article 8 the causal link has to be established between the State’s omission and the onset of a risk, and not between the risk and the onset of a harm.

In Cannavacciuolo the Court extended this approach to Article 2 and overcame the previous paradoxical approach (on some inconsistencies concerning, more generally, the approach to victim status in respect of Article 2 cases, see Rossi), which was actually at odds with the non-environmental case-law. Think, for example, of domestic violence: in order to trigger States’ positive protective obligations, it is not necessary to wait for potentially life-threatening attacks, death threats being sufficient for the Court to conclude that the authorities were under an obligation to assess the nature and seriousness of the risk and prevent it from materialising (Kurt v. Austria [GC], para. 200). I therefore do not see why, in the environmental context, it should be necessary to wait for an individual to develop a life-threatening disease just to trigger States’s obligations to assess whether the exposure is capable of affecting life and, if the answer is yes, to adopt measures to eliminate the risk.

By contrast, whether an individual suffered a special «harm» (in the form of a life-threatening disease, or has died because of it) as a consequence of the State’s omission is an issue which should be assessed under the question of just satisfaction under Article 41 of the Convention which, in Cannavacciulo, the Court reserved for 2 years (para. 507), holding that it will be examined also taking into account the general measures which will be adopted (para. 508). It must therefore be hoped that, in dealing with this issue, the Court will avoid ruling that the finding of a violation constitutes sufficient redress, and actually engages in the assessment of the actual harm suffered by the applicants.

3. Mr Hyde, and the Court’s Blind Reliance on the Geographical Delimitation of the Affected Area as Determined by the Government

While it concluded that all applicants which had been residing in the municipalities identified as affected were victims, irrespective of (and without even considering) whether they had been diagnosed with life-threatening conditions, the Court noted, in dealing with the second limb of the objection, which was by contrast examined in the admissibility stage, that some applicants, or their deceased relatives, did not reside or had not resided in the municipalities which the Government identified as affected (para. 246).

This actually sufficed to conclude that those applicants were not victims since, in the Court’s view, «the domestic authorities were undoubtedly in possession of relevant evidence and information which led them to single out the municipalities in question and it is not for the Court to call into question such an assessment, which the authorities were better placed to make» (para. 247; emphasis added).

The Court had done the same in the past, in Cordella, where, however, it observed that the applicants who lived outside the affected area determined by the Government had not provided elements capable of challenging its extension (para. 103). By contrast, in Canavacciuolo the situation was different. The applicants, both in replying to the Government’s objection (para. 248), and in their complaints on the merits of the case (paras. 303 and 313), had strongly argued that the mapping was not sufficient, as there were many municipalities that were affected by the same problems, and that the authorities had not done enough to identify contaminated lands.

This begs the question of how the Court should rule on the victim status issue where the very same facts on which such a decision must be based are contested between the parties.

In general, when the facts concerning the establishment of victim status are disputed, the Court ascertains whether the applicants have furnished prima facie evidence; if that is the case, the burden of proof should shift to the Government (N.D. and N.T. v, Spain [GC], para. 85). In environmental cases, taking into consideration their evidentiary difficulties, the Court has had particular regard to the findings of the domestic courts and other competent authorities in order to conclude that the applicants were affected by the situation complained of (Taskin and Others v. Turkey, 2004, paras. 113-114; Giacomelli v. Italy, 2006, para. 89; Hardy and Maile v. the United Kingdom, 2012, para. 191). However, as clarified in Tatar v. Romania, the absence of internals decision or official documents indicating the degree of risk posed to human health cannot be held to be fatal to a claim, the Court being allowed to rely to the applicant’s allegations and the supporting evidence (paras. 93-97). The Court has also held that it cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such a situation, it has to assess the evidence in its entirety (Dubtska and Others v. Ukraine, 2011, para. 107; Pavlov and Others v. Russia, 2022, para. 62; Kotov and others v. Russia, 2022, para. 102).

In Canavacciuolo, as noted by the same Court (para. 247) the Government’s geographical delimitation had been contradicted by an Italian Senate’s Committee which, relying on the complexity of the phenomenon and its diffusion, had concluded that «this did not mean that certain areas which had not been included on this list were unaffected» (para. 73). Given these contradictory findings, and given that they had not even by assessed by independent domestic courts (due to the absence of effective domestic remedies, as determined by the same Court), the Court case-law required not to blindly rely on them.

The problem is even more serious if one considers that, when assessing in the merits whether the domestic authorities had complied with their duty to identify the affected areas and the nature and extent of the contamination (para. 395), the Court noted, inter alia, that other authorities had observed that the risk had been underestimated (para. 404) and that some other areas were potentially affected (para. 405), found the measures taken by the domestic authorities to identify the areas to be insufficient (paras. 409-410), and noted that new evidence proved that new affected sites continued to be discovered (para. 411). The Court therefore found a breach of Article 2 also on this ground, and, under Article 46, ordered general measures aimed at better identifying the affected areas (paras. 495-496).

In this context, I really do not see how the Court could presume, in the victim status assessment, that the authorities «undoubtedly» did their job well.

4. Reconciling Dr Jeckyll and Mr Hyde: The Logic Behind the Court’s Approach and the Future Developments

Having said all the above, the principle behind the Court’s approach seems nonetheless understandable.

Normally, in order to claim victim status, it is for the applicants to provide evidence capable of satisfying the Court that they were affected by the violation complained of (N.D. and N.T. v. Spain [GC], para. 85). In Canavacciuolo, like in the other cases cited above, the Court somehow exempted the applicants from providing this evidence where the fact that they had been affected had been already acknowledged by the domestic authorities, therefore applying some sort of presumption on the basis of the Government acknowledgment. However, absent such acknowledgment, it would be again for the applicants to provide such evidence. In the present case, the Court seems to have considered that the applicants did not satisfy their burden of proof, since it held that it had no sufficient evidence to challenge the Government’s delimitation of the area (para. 248).

However, it remains that, in the circumstances of the case, the Court could have concluded that the applicants had provided sufficient evidence. As the Senate’s Committee observed, the pollutants at issue could spread very easily in many different ways, and the applicants had replied to the Government’s objection by highlighting that (1) the pollution in question could cross boundaries; (2) certain municipalities not included in the list adjoined, and in certain cases were surrounded, by municipalities included; and (3) other municipalities, not included, were nonetheless included among the so-called «sites of national interest» requiring decontamination (para. 248). Considering the precautionary approach advocated by the Court in this case, it would have been possible to reach the conclusion that a positive obligation was also triggered in their respect.

Moreover, considering the case-law cited above, the Court could have examined the complaints of those applicants under Article 8, in respect of which the applicability threshold is lower and which does not require evidence of an actual harm to the individual’s health: due to the seriousness of the situation, as ascertained by the Court in the same judgment, it is indeed undisputable that at least those applicant’s «quality of life» was affected. It is possible that the Court did not do so because it has already recognised that almost 3 millions of individuals were victims of the violation, and it did not want to open the gates to further applications. However, provided that the principles governing victim status are complied with and that the prohibition of actio popularis is not breached, this «floodgates argument», which is based on the logic that «if it is very costly to hear the applications of all victims, then those victims should be deemed not to have a legal right», is «foreign to the Convention system» and has not basis in it (Letsas).

It also remains that, if this is the rationale behind it, and since the Court has expressly found that the violation in question concerns a continuing situation which has not ceased to date (para. 283), individuals residing in areas in proximity to the affected one would be entitled to lodge further applications and try to demonstrate, by also relying on the findings of the Court in this judgment, that they are also affected by and therefore victims. The same Court held, in the part concerning the necessary general measures, that the situation is capable of affecting other individuals (para. 492).

In any case, from an overall perspective, it appears that the judgment significantly and positively developed the Court’s case-law concerning the applicability of Article 2, by adopting an approach that, as the same Court observed (para. 381), truly safeguards the right to life in a practical and effective way (Zirulia, more generally, on the need to adopt an approach to standing capable of guaranteeing Convention rights in a practical and effective way, see Acconciamessa).

It is true that the Court justified this development by relying on the alleged «exceptionality» of the situation at stake (para. 384), in order to somehow underestimate the innovative approach and the overruling of the previous one. However, the reasons provided by the Court to demonstrate this exceptionality of this case seem insufficient to justify a special treatment if compared from other cases concerning environmental harm capable of threatening health and life. On the one hand, the Court argued that this case was different from previous cases, which allegedly only concerned «a single, identified, circumscribed source of pollution or activity causing it, and a more or less limited geographical area»; however, the Court carefully avoided to cite the case of Cordella, and it can hardly be disputed that that case was as serious as the Terra dei fuochi situation. On the other hand, it is hard to see how the alleged special features of this case – notably, the fact that it concerned «a particularly complex and widespread form of pollution occurring primarily, but not exclusively, on private land» which, moreover, «concerns activities carried out by private parties, namely organised criminal groups, as well as by industry, businesses and individuals, beyond the bounds of any form of legality or legal regulation» – can have an impact on the question whether the activities in question entail a risk for human life.

It must therefore be hoped that the Court will consider this case as a real case-law development, and not as an exception, and that this new approach will be followed also in other cases concerning life-threatening environmental harm.

It is true that it is still possible for the Government to request the referral of the case to the Grand Chamber. However, one might first wonder whether they will do it, since they already started implementing the judgment (see, for example, here). Moreover, even if the case goes to the Grand Chamber, the latter would, in the worst scenario, reestablish the previous approach, and conclude that Article 2 is not applicable, and that the case must be assessed under Article 8, which enshrines very similar obligations. Since the Government would be found to be in any case in breach of the Convention, one can wonder whether it would be a good move for them (in the face of public opinion) to postpone the adoption of the necessary measures on the basis of abstract legal disquisitions on which Convention provision should apply, after already almost 40 years of their inaction in respect of the situation.